Page 2, line 37, at end insert:
("( ) On the acceptance by the Health Authority of the supervision application in respect of a patient, he shall cease to be liable to be detained in a hospital under the provisions of this Act.").

1 May 1995 : Column 1229

The noble Baroness said: My Lords, this amendment intends to clarify the fact that aftercare under supervision applies only to patients who have been discharged from hospital into the community and are no longer liable to be detained. In a sense, that follows very closely and neatly after the previous amendment proposed by the Minister.

We debated a similar amendment in Committee which was moved by my noble friend Lord Carter. In her reply the Minister seemed to suggest that she felt that the force of the amendment was as regards the distance in time between the time at which the patient was in theory discharged from a hospital but was not yet under the auspices of a health authority and social services in the community.

In order to clarify that matter, perhaps I may emphasise that that is not the problem that concerns us. What concerns us is that, as currently drafted, the first part of the Bill does not make it clear that patients subject to aftercare after supervision should no longer be liable to be detained under the 1983 Act and hence liable to recall to hospital. As was pointed out in Committee, that was spelt out much more clearly in relation to the community care orders in Scotland. Clause 4 of the present Bill at Section 35A(8) states:

"On the coming into force of a community care order in respect of a patient, he shall cease to be liable to be detained in a hospital under this Part of this Act".

In response to that point, the Minister said in Committee:

"As I understand it, the Scottish Act is very different from ours. It involves sheriffs and courts in a way that our Act does not".[Official Report, 4/4/95; col. 133.]

But that does not seem to be an entirely appropriate answer to the point raised about the patient's situation, which is dealt with in Clause 4 at new Section 35A(8). In view of the misunderstanding by the Minister, which seemed to arise in Committee, that we were concerned about the time-lag, which is not our primary concern, and in view of the fact that we did not feel that the Minister gave an appropriate answer, we have now brought back the amendment. I beg to move.

Baroness Miller of Hendon: My Lords, when this amendment was last moved in Committee by the noble Lord, Lord Carter, he told your Lordships that the intention was to clarify that aftercare under supervision applies only to those who are no longer liable to be detained. He drew a comparison with the Scottish provisions which state at new Section 35G(8) that a patient shall cease to be liable to be detained as soon as a community care order comes into force.

In England and Wales a supervision application can be made and accepted while the patient is still in hospital or liable to be detained. The new provisions would not, however, take effect until the patient had left hospital. Until that point the patient would remain liable to be detained provided his period of liability had not meanwhile expired. If it had, he could remain in hospital as a voluntary patient. New Section 25G(1) makes it quite clear that aftercare under supervision actually

1 May 1995 : Column 1230

commences when he leaves hospital, although the period for appeal rights and renewal is calculated from the date the application is accepted.

In the light of that explanation, I invite the noble Baroness to withdraw the amendment.

Baroness Jay of Paddington: My Lords, I am grateful to the noble Baroness, Lady Miller, for that explanation, which is slightly different to that given in Committee. It expands on the points that were made then and with that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Cumberlege moved Amendment No. 15:

Page 2, line 40, leave out from beginning to ("and") in line 43 and insert:
("(a) subsection (2) below is complied with;").

The noble Baroness said: My Lords, in moving Amendment No. 15, I speak also to Amendments Nos. 17, 25, 43, 47, 49, 50, 52, 54, 57, 58 and 142. During the Committee stage my noble friend Lord Mottistone made a persuasive case for consulting the patient's nearest relative when reaching important decisions about making a supervision application, renewing it and ending it. I agreed to consider this further and I am pleased to inform my noble friend that we accept his case, with the proviso that the patient must retain the right to object. These amendments will require the nearest relative to be consulted about these matters where the patient does not object. We have also taken the opportunity to amend the phrase, "except where" the patient objects to "unless" the patient objects in the various places that it appears in Clause 1. This is simply a drafting improvement in the interests of greater clarity. I beg to move.

Lord Mottistone: My Lords, I thank my noble friend for this group of amendments. Amendment No. 57, to which she referred, is in my name and is a safeguard in case she had not got around to tabling amendments. She has more than covered what I was hoping to see and I am grateful for that.

Baroness Jay of Paddington: My Lords, I, too, wish to thank the Minister for covering all the points made by the noble Lord, Lord Mottistone, and others who spoke so eloquently at Committee stage on the subject of involving the closest relatives and the family. I wish to speak briefly to my Amendment No. 58, which is also in this large group we are discussing. In that amendment I suggest deleting the word "appearing", and inserting the phrase "identified by the patient". This is an area which we discussed in Committee. I wonder whether, on reflection, the noble Baroness might accept both "appearing" and "identified by the patient" instead of substituting the one for the other.

I return to the point about the patient having the ability to identify who is his nearest relative for precisely the reasons that I raised in Committee as regards families who fall out with each other and as regards how relations are substituted for one another, as in the Mental Health Act.

1 May 1995 : Column 1231

I make no apology for returning again to the tragic case which has disturbed me very much, and to which I referred earlier when we discussed my noble friend's amendment on housing, and that is the inquiry into the case of Ellen and Alan Boland. In the terms of the Government's amendment as it now stands, Mr. Boland's mother would be Mr. Boland's nearest relative. The psychopathology of the relationship between them was clearly so bad that it contributed greatly to the deterioration in his mental state. Although he expressed his dissatisfaction at living with his mother and explained the extraordinary circumstances of their bad relationship to many of the social and health workers who looked after him at different stages in his illness, it was difficult, given the precise nature of the social services arrangements and of the various legal arrangements, to disentangle the circumstances in which he lived from those in which his mother lived.

I explain this again, not to reopen the discussion about housing, but simply to use this as an illustration of a tragic case where someone who would appear to be the patient's nearest relative, and who fulfilled that function, did so in a negative way. If the patient in this case had been asked to identify who he would regard as his nearest relative, he might well have identified someone else, with rather less tragic results.

Earl Russell: My Lords, I should just like to say a brief word of support in favour of Amendment No. 58. This seems to me a thoroughly sensible, practical and helpful amendment, and essential for the process to work. It is characteristic of mental illness that it often comes out of a pattern of a good deal of tension within the family and occasionallyas in the case which the noble Baroness mentionedone particular relative may be the object of a particularly intense distrust on the part of the patient. It does not do any good to discharge the patient into the supervision of that person. I hope that the Minister will be able to see her way to accepting this amendment.

Lord Desai: My Lords, I wish to make a small observation to which I hope the Minister will reply. When defining "relative" it occurs to meI have thought this ever since this debate started that that term is rather narrow in terms of modern life. It relates to family or to a relative acquired by marriage. It may in practice be broadly interpretedI do not know about thatand perhaps if a person is in a homosexual relationship, the partner may not be described as a relative. Perhaps, however, that might be precisely the person to consult. Could the noble Baroness say whether the term "close relative" is interpreted broadly so as to include a number of relationships, or whether it is interpreted narrowly? It is important that the term should be interpreted broadly and not narrowly.

4.45 p.m.

Baroness Cumberlege: My Lords, I am interested in what the noble Baroness said and the support which she has from your Lordships. I understand that "nearest relative" is defined in the Mental Health Act 1983, Section 23. Therefore, it would be difficult, indeed impossible, for me to accept that amendment.